Vasquez v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2673

JULIO VÁSQUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR.,
ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

Thomas P. Glynn with whom Allan M. Tow was on brief for
petitioner.
Tiffany Walters Kleinert, Trial Attorney, with whom Tony West,
Assistant Attorney General, and David V. Bernal, Assistant
Director, were on brief for respondent.

February 16, 2011
 STAHL, Circuit Judge. Julio Vásquez, a 39-year-old

citizen of Guatemala, petitions for review of an order issued by

the Board of Immigration Appeals ("BIA"). Vásquez challenges the

BIA's conclusion that an expedited removal order interrupted his

continuous physical presence in the United States, thereby

rendering him ineligible for cancellation of removal pursuant to

8 U.S.C. § 1229b. Alternatively, Vásquez urges this court to

remand for a determination as to whether he was warned about the

consequences of an expedited removal order and "given the choice of

being turned away." We deny this petition in part and dismiss it

in part for lack of jurisdiction.

I. Facts & Background

Vásquez entered the United States on April 1, 1992

without being admitted or paroled. After living in the United

States for at least several months, Vásquez applied for asylum.

His application was never approved, but Vásquez was issued a work

authorization card while the application was pending.1

In September 1997, after more than five years in the

United States, Vásquez returned to Guatemala "to see if things

[had] changed . . . after the government signed the peace

contract." On October 22, 1997, Vásquez attempted to re-enter the

1
The record is unclear as to precisely when Vásquez applied
for asylum and the time period for which he held a valid work
authorization card (though it appears that the card was renewed
annually through at least 1997). These factual details have no
material impact on our analysis.

-2-
United States at Miami International Airport using a Guatemalan

passport that was not his own. Vásquez was stopped by Immigration

and Naturalization Service ("INS") officials, and provided a sworn

statement in which he admitted to paying $1,000 for the fraudulent

document. The INS officials deemed Vásquez inadmissible pursuant

to two different statutory provisions. See 8 U.S.C. §

1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to

procure or has procured) a visa, other documentation, or admission

into the United States . . . is inadmissible."); id. §

1182(a)(7)(A)(i)(I) (providing that any noncitizen who does not

possess valid entry documentation is inadmissible). As a result,

Vásquez was issued an expedited removal order pursuant to 8 U.S.C.

§ 1225(b)(1) and was removed. Nonetheless, later that same month,

Vásquez successfully re-entered the United States (without

authorization), where he went on to secure consistent employment

and purchase a home.

On September 30, 2006, the Department of Homeland

Security ("DHS") commenced formal removal proceedings against

Vásquez by serving him with a Notice to Appear ("NTA"). The NTA

alleged that Vásquez was subject to removal because he had entered

the United States without admission or parole on April 1, 1992.

See § 1182(a)(6)(A)(i).

-3-
 In the proceedings in front of the Immigration Judge

("IJ"), Vásquez conceded that he was removable under §

1182(a)(6)(A)(i), but sought other forms of relief including

cancellation of removal pursuant to § 1229b(b)(1) and, in the

alternative, voluntary departure. On July 29, 2008, the IJ

concluded that Vásquez was ineligible for cancellation of removal.

The IJ reasoned that the October 1997 expedited removal order

interrupted Vásquez's continuous physical presence in the United

States. Consequently, with Vásquez's period of physical presence

terminating upon service of the NTA in September 2006, see §

1229b(d)(1), Vásquez lacked the ten years of continuous physical

presence required by § 1229b(b)(1). The IJ did, however, grant

Vásquez's application for voluntary departure.

On November 27, 2009, the BIA, in an opinion that appears

to have been issued by a single member,2 dismissed Vásquez's appeal

and affirmed the IJ's decision. Citing In re Avilez-Nava, 23 I. &

N. Dec. 799, 805-06 (BIA 2005) (en banc) and Juarez-Ramos v.

Gonzales, 485 F.3d 509 (9th Cir. 2007), the BIA explained, "The

[October 1997] expedited removal proceedings constituted a 'formal,

documented process pursuant to which the alien was determined to be

inadmissible to the United States,' such as would be inconsistent

with a continuation of physical presence." As a result, Vásquez

2
BIA decisions are issued by a single member, by a three-
member panel, or en banc. See 8 C.F.R. § 1001.3.

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lacked the requisite ten years of continuous physical presence

prior to being served with the NTA in September 2006.

II. Discussion

In cases where the BIA has rendered a decision with its

own analysis of the question at issue, our review focuses on the

BIA's decision, not the IJ's.3 See Pulisir v. Mukasey, 524 F.3d

302, 307-08 (1st Cir. 2008); cf. Jupiter v. Ashcroft, 396 F.3d 487,

490 (1st Cir. 2005) ("Where . . . the BIA has employed its

streamlined 'affirmance without opinion' procedure, see 8 C.F.R. §

1003.1(e)(4), we review directly the IJ's decision as if it were

the decision of the BIA."). We review the BIA's conclusions of law

de novo "'with appropriate deference to the agency's interpretation

of the underlying statute in accordance with administrative law

principles.'" Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir. 2006)

(quoting Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998)).

A. The Effect of Expedited Removal on Vásquez's Eligibility
for Cancellation of Removal

Because § 1229b is unclear as to whether an expedited

removal ends the accrual of continuous physical presence in the

United States, and the BIA's resolution of that ambiguity was

reasonable, we reject Vásquez's challenge to the determination that

3
That said, in this case, the BIA and the IJ used similar
reasoning to arrive at the same result.

-5-
a departure via an expedited removal order halts continuous

physical presence in the United States.4

1. Statutory Framework

The Immigration and Nationality Act ("INA") authorizes

expedited removal "[i]f an immigration officer determines that an

alien (other than an alien described in subparagraph (F)) who is

arriving in the United States . . . is inadmissible under section

1182(a)(6)(C) or 1182(a)(7)." § 1225(b)(1)(A)(i). An expedited

removal order precludes admissibility to the United States for five

years. § 1182(a)(9)(A)(i). However, an alien subject to expedited

removal is not entitled to "further hearing or review unless the

alien indicates either an intention to apply for asylum . . . or a

fear of persecution." Id. The lack of procedural protections

accompanying expedited removal stands in contrast to the

4
This court has jurisdiction to review this issue pursuant to
8 U.S.C. § 1252. Notably, § 1252 precludes jurisdiction over "any
judgment regarding the granting of relief under section . . . 1229b
. . . ." Id. § 1252(a)(2)(B)(i). Nonetheless, we may review the
predicate legal question of whether an alien has satisfied the
continuous physical presence requirement of § 1229b(b)(1). See,
e.g., Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010) (noting that
Congress carved out an exception to § 1252(a)(2)(B)'s jurisdiction-
limiting effect: "when a petition for judicial review raises claims
premised on either constitutional questions or questions of law"
(citing § 1252(a)(2)(D))); Mendez-Reyes v. Att'y Gen. of U.S., 428
F.3d 187, 189 (3d Cir. 2005) ("This Court generally lacks
jurisdiction to review discretionary decisions made under § 1229b
. . . . However, under the Real ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, our jurisdiction is expanded to consider
'constitutional claims or questions of law' notwithstanding the
jurisdictional limitations of § 1252(a)(2)(B)." (quoting
§ 1252(a)(2)(D))).

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significant process, specified in 8 U.S.C. § 1229a, that is

required to effectuate a formal removal. See Juarez-Ramos, 485

F.3d at 511 n.16.

The INA gives the Attorney General discretion to "cancel"

removal if the alien:

(A) has been physically present in the United
States for a continuous period of not less
than 10 years immediately preceding the date
of such application;

(B) has been a person of good moral character
during such period;

(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
of this title, subject to paragraph (5); and

(D) establishes that removal would result in
exceptional and extremely unusual hardship to
the alien's spouse, parent, or child, who is a
citizen of the United States or an alien
lawfully admitted for permanent residence.

§ 1229b(b)(1) (emphasis added) ("subpart (b)(1)").5

5
Because we conclude that Vásquez failed to maintain ten years
of continuous physical presence in the United States, see infra, we
need not address whether he would satisfy the other requirements
for cancellation of removal under subpart (b)(1).

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 Although § 1229b does not include a definition of either

"continuous" or "physical presence," it does include "special

rules" that inform the meaning of those terms:

Special rules relating to continuous residence
or physical presence

(1) Termination of continuous period
For purposes of this section, any period
of continuous residence or continuous
physical presence in the United States
shall be deemed to end (A) except in the
case of an alien who applies for
cancellation of removal under subsection
(b)(2) of this section, when the alien is
served a notice to appear under section
1229(a) of this title, or (B) when the
alien has committed an offense referred
to in section 1182(a)(2) of this title
that renders the alien inadmissible to
the United States under section
1182(a)(2) of this title or removable
from the United States under section
1227(a)(2) or 1227(a)(4) of this title,
whichever is earliest. [("subpart
(d)(1)")]

(2) Treatment of certain breaks in presence
An alien shall be considered to have
failed to maintain continuous physical
presence in the United States under
subsections (b)(1) and (b)(2) of this
section if the alien has departed from
the United States for any period in
excess of 90 days or for any periods in
the aggregate exceeding 180 days.
[("subpart (d)(2)")]

Id. § 1229b(d)(1)-(2).

Additionally, the BIA has attempted to clarify what types

of events will halt the accrual of continuous physical presence.

In In re Romalez-Alcaide, the BIA held that, in addition to the

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departures exceeding a certain duration specified in subpart

(d)(2), a departure under threat of deportation also "constitute[s]

[a] break[] in the . . . accrual of continuous physical presence

for purposes of cancellation of removal." 23 I. & N. Dec. 423,

423-24 (BIA 2002) (en banc). Later, in In re Avilez-Nava, the BIA

reaffirmed its conclusion that § 1229b(d)(2) "'does not purport to

be the exclusive rule respecting all departures.'" 23 I. & N. Dec.

at 802 (quoting In re Romalez-Alcaide, 23 I. & N. Dec. at 425)

(emphasis in original). The BIA held, however, that a mere refusal

to admit at a land border port of entry, without any formal or

documented process effectuating that refusal, does not interrupt

continuous physical presence. Id. at 803-06. Specifically, the

BIA explained:

[W]e hold that an immigration official's
refusal to admit an alien at a land border
port of entry will not constitute a break in
the alien's continuous physical presence,
unless there is evidence that the alien was
formally excluded or made subject to an order
of expedited removal, was offered and accepted
the opportunity to withdraw his or her
application for admission, or was subjected to
any other formal, documented process pursuant
to which the alien was determined to be
inadmissible to the United States.

Id. at 805-06 (emphasis added).

2. The BIA's Interpretation of § 1229b and the
Chevron Analysis

Because this case presents us with "questions implicating

'an agency's construction of the statute which it administers,'" we

-9-
"[apply] the principles of deference described in Chevron USA Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842

(1984)." See INS v. Aquirre-Aguirre, 526 U.S. 415, 424-25 (1999)

(applying Chevron in reviewing a BIA interpretation of a statutory

exception to an INA provision mandating the withholding of

deportation in certain circumstances);6 see also Negusie v. Holder,

129 S. Ct. 1159, 1163 (2009) ("It is well settled that principles

of Chevron deference are applicable to [the INA]." (internal

quotation marks omitted)). That is, we apply Chevron's two-step

analysis in reviewing the BIA's interpretation of § 1229b. The

first step in this analysis is to "ask[] whether 'the statute is

silent or ambiguous with respect to the specific issue' before

[this court] . . . ." Aquirre-Aguirre, 526 U.S. at 424 (quoting

Chevron, 467 U.S. at 843). "If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of

Congress." Chevron, 467 U.S. at 842-43. If, on the other hand,

the statute is silent or ambiguous, we turn to Chevron's second

6
For two different reasons, we have no need to address whether
an opinion issued by a single member of the BIA, by virtue of the
fact that a single member issued it, is entitled to Chevron
deference, see, e.g., De Leon-Ochoa v. Att'y Gen. of U.S., 622 F.3d
342, 349-51 (3d Cir. 2010), or is in any event entitled to at least
Skidmore deference, see United States v. Mead Corp., 533 U.S. 218,
227-28 (2001). First, neither party questions the applicability of
the Chevron framework. Second, the BIA specifically cited to and
applied the rule of an en banc BIA opinion, In re Avilez-Nava, 23
I. & N. Dec. at 805-06.

-10-
step and ask "'whether the agency's answer is based on a

permissible construction of the statute.'" Aquirre-Aguirre, 526

U.S. at 424 (quoting Chevron, 467 U.S. at 843). In this second

inquiry, the BIA's interpretation will be affirmed if it is a

reasonable one. See Mead Corp., 533 U.S. at 229 (citing Chevron,

467 U.S. at 842-45).

a. Chevron's Step One

In this case, the step-one question is as

follows: is § 1229b silent or ambiguous as to whether an expedited

removal ends an alien's continuous physical presence in the United

States?

Vásquez argues that subpart (d)(1), which constitutes the

first part of § 1229b(d), unambiguously precludes an expedited

removal order, in and of itself, from interrupting an alien's

continuous physical presence. Vásquez reasons that subpart

(d)(1)'s specificity7 evinces a congressional intent to create an

7
As stated earlier, subpart (d)(1) explains that continuous
physical presence is generally terminated

(A) . . . when the alien is served a notice to
appear under section 1229(a) of this title, or
(B) when the alien has committed an offense
referred to in section 1182(a)(2) of this
title that renders the alien inadmissible to
the United States under section 1182(a)(2) of
this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this
title . . . .

§ 1229b(d)(1).

-11-
exhaustive list of events that end continuous physical presence.

Vásquez further bolsters his position by asserting that statutes

pertaining to removal should be strictly construed in favor of the

alien.

We are unpersuaded. Despite its specificity, subpart

(d)(1) "does not state that these are the only circumstances in

which continuous presence 'shall be deemed to end'." See Mireles-

Valdez v. Ashcroft, 349 F.3d 213, 218 (5th Cir. 2003). In fact,

nothing in the entirety of § 1229b expressly precludes expedited

removal from ending an alien's continuous physical presence. As

the Third Circuit has observed, "The statute does not further

define 'continuous physical presence,' and it is silent as to

whether there are additional circumstances under which continuous

physical presence may be broken." Mendez-Reyes, 428 F.3d at 191.

Further, Vásquez's argument ignores the second part of §

1229b(d): subpart (d)(2). Subpart (d)(2) specifies additional

circumstances — specifically, departures from the United States

that exceed a certain duration — that end continuous physical

presence. The existence of subpart (d)(2) precludes any argument

that subpart (d)(1) amounts to an exhaustive list of events that

interrupt continuous physical presence. Mireles-Valdez, 349 F.3d

at 218 ("[S]ubpart (d)(1) cannot be exhaustive because . . .

subpart (d)(2) provides that certain absences, on the basis of

their length, terminate continuous presence."); see also Tapia v.

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Gonzales, 430 F.3d 997, 1001 (9th Cir. 2005) ("Congress did not

explicitly specify when an alien absent for less than ninety days

may continue to accrue time toward the continuous physical presence

requirement and when the accrual of time is terminated . . . .").

Nor do we see any clear indication that subparts (d)(1) and (d)(2)

together were meant to constitute an exclusive list. See Mireles-

Valdez, 349 F.3d at 218; Mendez-Reyes, 428 F.3d at 192 ("[T]he fact

that Congress has declared [in subpart (d)(2)] that a departure of

more than 90 days shall constitute a break in physical presence

does not necessarily mean that departures of less than 90 days

shall not constitute a break in physical presence."); see also

Ascencio-Rodriguez v. Holder, 595 F.3d 105, 112 (2d Cir. 2010)

("[A]lthough 8 U.S.C. § 1229b(d) sets forth circumstances under

which continuous physical presence must be deemed to have been

broken, Congress has not spoken on whether other events can also

operate to terminate an alien's period of continuous physical

presence." (internal quotation marks omitted)).

In short, § 1229b(d) does not unambiguously preclude

unspecified occurrences, such as an expedited removal, from ending

an alien's continuous physical presence in the United States.8

8
But see Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 965 (9th
Cir. 2003) (Berzon, J., dissenting from order denying rehearing en
banc) (in case involving whether voluntary departure under threat
of removal broke continuous physical presence, noting that, "I am
unconvinced that section 1229b(d)(2) is sufficiently ambiguous on
its face to survive the first prong of Chevron").

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Consequently, we turn to step two and ask whether the BIA's

determination that an expedited removal does in fact interrupt

continuous physical presence is a reasonable construction of the

statute.

b. Chevron's Step Two

Vásquez argues that, even if this court finds § 1229b

ambiguous, "the [BIA]'s interpretation is impermissible given the

strict construction that should be given immigration statutes,

particularly removal statutes."

Again, we disagree. First, as the Third Circuit has

observed, "[i]n light of the INA's enormously broad delegation to

the Attorney General, we would be extremely reluctant to hold that

his interpretation of the INA is unreasonable." Mendez-Reyes, 428

F.3d at 192 (internal quotation marks omitted) (applying step two);

see also Vasquez-Lopez, 343 F.3d at 970 ("We must also be mindful

that 'judicial deference to the Executive Branch is especially

appropriate in the immigration context where officials exercise

especially sensitive political functions that implicate questions

of foreign relations.'" (quoting Aguirre-Aguirre, 526 U.S. at

425)).

Second, an expedited removal order is clearly intended to

sever an alien's ties with this country for the five-year period

during which it prohibits an alien from re-entering the United

States. See § 1182(a)(9)(A)(i); Juarez-Ramos, 485 F.3d at 511.

-14-
Accordingly, it is not unreasonable to conclude that an alien's

departure from the United States following such an order

constitutes an interruption in that alien's continuous physical

presence in the United States. In fact, a contrary rule would seem

inconsistent with the congressional intent underlying the INA. See

Juarez-Ramos, 485 F.3d at 511 (holding that expedited removal

interrupts continuous physical presence "because, in at least one

important way, expedited and formal removals are similar. Both

carry with them an explicit statutory bar to readmission for a

period of five years. This statutory bar reflects a congressional

intent to sever an alien's ties to this country." (internal

citations omitted)); Tapia, 430 F.3d at 1002 (in distinguishing a

border turnaround from a voluntary departure under the threat of

removal, noting that, "[t]o permit an alien who was removed or left

pursuant to an administrative voluntary departure to continue to

accrue physical presence would thwart Congress's clear intent that

such an alien be inadmissible for years following the date of his

departure").

We are aware that upholding the BIA's decision "might be

seen as arbitrarily rewarding those aliens lucky enough to have a

border official turn them around without placing them in the

expedited removal process." See Juarez-Ramos, 485 F.3d at 512

(internal marks omitted). However, any construction of § 1229b

will undoubtedly result in some seemingly arbitrary or unfair

-15-
results,9 and "a line must be drawn somewhere." See id. The BIA

was required to interpret the impact of expedited removal, which

precludes an alien from returning to the country for five years, on

eligibility for cancellation of removal, which authorizes relief

for certain aliens who are inadmissible but have continuously lived

in the United States for ten years. We cannot say that the way in

which the BIA balanced the goals of these provisions of the INA was

unreasonable, and we therefore defer to its construction of the

statute.

B. Vásquez's Purported Right to be Warned About the
Consequences of Expedited Removal

In addition to his challenge to the BIA's interpretation

of § 1229b, Vásquez urges us to remand to the IJ to "determine if

he was given the choice of being turned away after warning [sic]

that the consequences of an expedited removal would pretermit a

cancellation application." Vásquez contends that "[t]he INA, its

implementing regulations as well as a number of circuit and [BIA]

decisions indicate that at the border, an applicant for admission

to the United States should be warned of the consequences and be

9
For example, even under Vásquez's reading of § 1229b, an
alien who leaves the United States and is lucky enough to slip back
into the country illegally within ninety days may be eligible for
cancellation of relief. However, an alien who tries to do the same
but has the unfortunate luck of getting caught, and is therefore
unable to gain entrance within the ninety-day window, is ineligible
for such relief.

-16-
allowed to voluntarily withdraw his application for entry and be

turned away."

Vásquez did not, however, exhaust this argument in the

administrative proceedings below,10 and we therefore may not

consider it. See, e.g., Silva v. Gonzales, 463 F.3d 68, 72 (1st

Cir. 2006) ("[W]e may review a final order of the BIA only if 'the

alien has exhausted all administrative remedies available to the

alien as of right.' Under the exhaustion of remedies doctrine,

theories insufficiently developed before the BIA may not be raised

before this court." (quoting § 1252(d)(1))).

Vásquez attempts to overcome this hurdle with a series of

cursory counter arguments. First, citing United States v. Sosa,

387 F.3d 131, 136-37 (2d Cir. 2004), he asserts that an exception

to the exhaustion requirement exists in this case "[g]iven the

exclusivity with which the Customs and Border Patrol officials

operate," and the fact that Vásquez interacted with them pro se.

Second, Vásquez suggests that the exhaustion requirement may be

excused here because "[t]his court could . . . determine that the

time frame for determinations that [Vásquez] urges are

nonexistent." Finally, Vásquez asserts that any "attempt to raise

10
In his main brief Vásquez contends that "[t]he record does
show . . . that the issue was raised before the [IJ]." In his
reply brief, however, Vásquez concedes that he "presents an
argument that was not admittedly presented to the [BIA]."

-17-
the argument before the [BIA] would have been futile" because "the

[BIA] does not hear constitutional issues."

None of these arguments are persuasive. First, this

case does not implicate the principles at issue in Sosa, which held

that, where a previous deportation order is used as an element of

a criminal offense, "[a] failure to exhaust administrative remedies

bars collateral review of [that deportation order] under [8 U.S.C.

§ 1326(d)] . . . only where an alien's waiver of administrative

review was knowing and intelligent." Id. As for his nonexistent

time frame contention, Vásquez offers nothing more than the above-

quoted sentence to support this argument, and we cannot see how

this case would satisfy that exception to the exhaustion

requirement. Finally, regardless of it merits, Vásquez's last

argument fails because Vásquez does not actually advance a

developed constitutional claim. Although Vásquez's reply brief

asserts that his right-to-a-warning argument is constitutional in

character, Vásquez's main brief does not. Other than a few

references to "fairness" and "fundamental fairness," the brief

never suggests that it is advancing a constitutional theory. In

fact, the relevant section of the brief never expressly cites to

any constitutional provision. Rather, it relies on citations to

the INA, corresponding regulations, and case law analyzing the

BIA's interpretation of the INA.

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 III. Conclusion

For the foregoing reasons, we deny this petition in part

and dismiss it in part.

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